Outten & Golden: Empowering Employees in the Workplace

Supreme Court Upholds FMLA Cases Against States

May 27th, 2003 | Paula Brantner

The U.S. Supreme Court, and in particular, Chief Justice William H. Rehnquist, handed employee advocates an unexpected victory today, in the case of Nevada Department of Human Resources v. Hibbs. (See USA Today article.) Although the Family and Medical Leave Act (FMLA) was expected by some to be yet another civil rights casualty in the federalism wars, a 6-3 majority of the Supreme Court upheld a state worker’s right to sue the state for damages after he was terminated for taking family leave to care for his wife who had been injured in a car accident. While Chief Justice Rehnquist and Justice Sandra Day O’Connor had previously voted for the majority in rejecting claims brought by state workers who suffered discrimination on the basis of age (Kimel v. Fla. Bd. of Regents) and disability (Board of Trustees of Univ. of Ala. v. Garrett, in this case, the outcome was different. Why? The short answer is sex discrimination.

William Hibbs worked for the Welfare Division of Nevada’s Department of Human Resources. (The Department’s motto, ironically enough, is “Helping People: That’s What We Do.” Hibbs might beg to differ.) In April and May 1997, he sought FMLA leave to care for his wife, Diane, who was recovering from a car accident and neck surgery. (For more information about FMLA leave, see our web site’s page on family/medical leave.) The Department granted his request for the full 12 weeks of FMLA leave and authorized him to use the leave intermittently as needed between May and December 1997. Hibbs took leave intermittently until August 5, 1997, after which he did not return to work. In October 1997, the Department informed Hibbs that he had exhausted his FMLA leave, that no further leave would be granted, and that he must report to work by November 12, 1997. Hibbs was dismissed after failing to return to work on the requested date. (See New York Times article.)

Hibbs then sued to get his job back and to receive money damages for the wages he lost in the federal district court of Nevada. The state of Nevada immediately claimed that it was immune from suits like Hibbs’, and Hibbs lost at the initial level without ever receiving a trial on the merits of his case. Hibbs appealed his case to the next highest court, the 9th Circuit Court of Appeals, and the 9th Circuit reversed the lower court’s decision, ruling in favor of Hibbs. Last summer, the Supreme Court decided to hear the case, and heard arguments in January about whether the law should apply to state employees.

Chief Justice Rehnquist was the author of today’s ruling in Hibbs’ favor. The decision begins by discussing basic federalism doctrine: that states are presumed immune from federal lawsuits against them, unless they have expressly consented to these lawsuits under state law. However, Congress can override that immunity and allow states to be sued in federal court under certain circumstances. First, the law passed by Congress must make it unmistakably clear that Congress intended to allow suits against states. The FMLA passed that test: the law allows employees to seek damages “against any employer (including a public agency) in any Federal or State court of competent jurisdiction. Next, by passing this law, Congress must be seeking to enforce a right guaranteed by certain other provisions of the Constitution. For purposes of civil rights cases, the most common constitutional provision that Congress is seeking to enforce is the Fourteenth Amendment guarantee of “equal protection of the laws.” Section 5 of the 14th Amendment allows Congress to enforce this provision by passing “appropriate legislation,” which can have the effect of making unconstitutional conduct illegal, and also working as a deterrent to prevent the denial of equal protection from happening in the first place.

However, if Congress goes too far in passing this type of remedial legislation, it is up to the courts to stop Congress from exceeding its authority, as Congress cannot expand or rewrite the 14th Amendment when passing the laws intended to enforce it. The test to determine whether Congress has overstepped its bounds is called the “congruence and proportionality” test. This language was first adopted by the Supreme Court in 1996, in the case of City of Boerne v. Flores, where the Court ruled that this type of legislation must demonstrate “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” What this essentially means is that the remedy must very closely match the harm: if the remedy is too much or the harm is too little when compared to the remedy, the law will be found to be unconstitutional when applied to the states.

So the Court took a look at the harm that the FMLA was designed to prevent, to determine whether the remedy, being able to sue a state for damages and reinstatement, was congruent and proportional to that harm. That harm was sex discrimination. Before the FMLA was passed, members of Congress heard testimony about workplace discrimination encountered by both female and male workers who needed to take leave, but still encountered pervasive gender stereotypes in the employment context, specifically in the administration of leave benefits. Women were often presumed to be the primary caregivers in family situations, and were therefore more likely to need leave, and to be adversely affected when leave was denied. Employers often assumed that a woman was more likely to take leave, and accordingly denied employment and advancement to women who needed (or might need, in the case of women of childbearing age) leave currently or in the future. Men suffered from gender stereotyping as well: because men were not the traditional caregivers, men who either had no choice but to be primary caregivers or who wanted to take leave, for example, for child-rearing purposes, were not entitled in some states to take leave comparable to that permitted for pregnant women. Congress heard many examples of both women and men suffering discrimination, based on different, but equally serious, kinds of gender stereotyping, which was summarized by the Court as follows:

Stereotypes about women’s domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman’s domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers’ stereotypical views about women’s commitment to work and their value as employees. Those perceptions, in turn, Congress reasoned, lead to subtle discrimination that may be difficult to detect on a case-by-case basis.

(See Hibbs at pages 6-11 of the PDF file for a more detailed discussion of the legislative history.)

Congress also heard testimony about discrimination against older workers when passing the Age Discrimination in Employment Act (ADEA) and against disabled workers when passing the Americans with Disabilities Act. Yet as noted above, in Kimel and Garrett, the Supreme Court (with Rehnquist and O’Connor as part of the majority) previously refused to allow state workers to maintain the same kind of lawsuits against the states as were at issue in Hibbs. While you can quibble about how much evidence of past discrimination by states (not just in the private sector) was before Congress when passing each of these laws (and Justice Kennedy, who writes the primary dissenting opinion does quibble about that), the answer, according to Rehnquist and his colleagues joining the majority, is that sex discrimination has a special elevated status under the Constitution.

Veterans of law school classes in constitutional law wil remember the debate and discussion over whether the standard governing gender-based classifications should be called “heightened scrutiny” or “intermediate-level scrutiny,” but it’s definitely not “rational basis.” What these various tests refer to is the level of justification a state must provide for discriminating against a particular group of its citizens. Under the rational basis test (the lowest standard), a state merely has to show that it has “a rational basis for [discriminating] at a class-based level, even if it ‘is probably not true’ that those reasons are valid in the majority of cases.” (See Kimel, 528 U.S. at 86.) While it is occasionally possible to show the irrationality of the state’s conduct (see, for example, Romer v. Evans, where the Court held that the state of Colorado’s discrimination against its gay and lesbian citizens didn’t pass constitutional muster), generally it is not very hard for a state to demonstrate a constitutionally acceptable rational basis for discrimination.

A state that wants to discriminate on the basis of gender, however, must show that the discriminatory law, policy or activity “serv[es] important governmental objectives,” and “the discriminatory means employed [is] substantially related to the achievement of those objectives.” That’s tougher for states to demonstrate, and here, the Court found that there was sufficient evidence of constitutional violations by states denying family leave on the basis of gender stereotyping for Congress to attempt to remedy the problem by passing the FMLA. Therefore, the remedy chosen by Congress, a unpaid family-leave guarantee for full-time employees employed for a year or more, which permits those whose rights are violated to sue for damages, was considered “congruent and proportional.” While Congress could have simply said that states and private employers could not discriminate on the basis of gender for providing leave, the most likely response would have been for employers to simply not provide leave at all. Since the need for leave disproportionately falls on women, women would still suffer discrimination in disproportionate amounts, and so Congress did not go too far, in the Court’s opinion, in requiring that everyone who qualifies be allowed to take a certain amount of unpaid leave without adverse consequences.

What are the implications of this ruling, especially if you’re not a state employee or don’t expect to take leave any time soon? One, it prevents the protections provided by the FMLA from being further eroded. This is only the 2nd FMLA case decided by the Supreme Court, and in the previous case, Ragsdale v. Wolverine World Wide, Inc., the Court scaled back some worker-friendly provisions found in Department of Labor regulations interpreting the FMLA. It is thus encouraging to see a case that upholds the FMLA in a way that not only benefits workers, but reinforces the constitutional objectives underlying the law. It also demonstrates that there are some limits in how far the Court’s federalism cases will go. Over the last several years, civil rights advocates had become increasingly discouraged about the constitutional validity of any law protecting state workers–this shows that there are some protections left, and that it is unlikely, for example, that the Court will undo a previous decision applying Title VII, the primary federal antidiscrimination law protecting against race, color, sex, religion and national origin discrimination, to the states.

However, there are a couple of cautionary notes to be sounded. One involves the standard that Justice Scalia proposes to adopt in his dissent. Justice Scalia would require workers hoping to overcome their state’s immunity to show that their state, not just the states collectively, have a history of discrimination. In this case, for example, Hibbs would have to show that Nevada had a history of denying workers leave, not just that some states other than Nevada had a history of denying leave that Congress considered when crafting a legislative remedy. While Scalia’s approach did not command a majority here, if the composition of the Court changes (Chief Justice Rehnquist and Justice O’Connor are rumored to be considering retirement, allowing the Bush Administration and Republican Senate to appoint one or more Supreme Court justices if that happens in the next year and half.), Scalia’s position could ultimately win out in future federalism cases. One other lingering question, not before the Court in this case, is whether the FMLA’s provision guaranteeing leave for one’s own medical condition would be considered congruent and proportional, or whether it would be rejected for the same reasons that disability discrimination protections were rejected in the Garrett case. Those questions may indeed be considered at some future point, but today, workers can celebrate the Hibbs victory.

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